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. e du/thir dc ir c uit_1999/149Filed June 7, 1999

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

NO. 98-6075

BENJAMIN BLACKBURN, Appellant

v.

UNITED PARCEL SERVICE, Inc.;

PATRICIA KNOWLES

On Appeal From the United States District Court For the District of New Jersey (D.C. Civ. No. 95-cv-04709) District Judge: Honorable Maryanne Trump Barry

Argued: February 9, 1999

Before: BECKER, Chief Judge, McKEE, Circuit Judges and LEE, District Judge.*

(Filed June 7, 1999)

WALTER A. LUCAS, ESQUIRE (ARGUED)

GLEN D. SAVITS, ESQUIRE LISA NEMETH, ESQUIRE Lucas, Savits & Marose, LLC

50 Northfield Avenue West Orange, NJ 07052

Counsel for Appellant

___________________________________________________ ______________

*Honorable Donald J. Lee, United States District Ju dge for the Western District of Pennsylvania, sitting by designation.KATHLEEN M. McKENNA, ESQUIRE

(ARGUED)

DAVID W. MacGREGOR, ESQUIRE Proskauer, Rose, LLP

1373 Broad Street

P.O. Box 4444 Clifton, NJ 07105-4444

Counsel for Appellees

OPINION OF THE COURT

BECKER, Chief Judge.

In this diversity case, we are asked to review the District Court's grant of summary judgment for defendant Uni ted Parcel Service ("UPS"), which was grounded on the v iew that the conduct of plaintiff Benjamin Blackburn di d not constitute protected activity under the New Jersey "whistleblower" statute, the Conscientious Employee Protection Act ("CEPA"), N.J. Stat. Ann. SS 34:19-1 to -8. Being doubtful of the correctness of this conclusio n of the District Court, we will assume that Blackburn has m et his burden of establishing a prima facie case of retali ation

under CEPA. We will instead affirm the District Cou rt's judgment on the alternative ground that Blackburn h as failed to offer sufficient admissible evidence to r ebut UPS's proffered legitimate justification for his discharg e--his putative violation of UPS's anti-nepotism, favoriti sm, integrity, and accountability policies. In order to reach the pretext issue, and so as to determine which evidenc e of Blackburn's might be admissible at trial, we must c onsider the contours of a number of exceptions to the rule against admitting hearsay evidence. In particular, we must interpret the seldom-invoked exception for reputati on evidence concerning family relationships, see Fed. R. Evid. 803(19), which bears on Blackburn's defense to the nepotism charges. Ultimately, we conclude that an insufficient quantum of evidence would be admissibl e at trial to rebut UPS's proffered legitimate justifica tion for discharging Blackburn; hence, we affirm.

2I. Facts & Procedural History

Blackburn worked for UPS1 for approximately eight y ears. He began work as a driver in June 1986, and was pro moted several times, first becoming a manager in 1990. In early 1992, Blackburn was transferred to a division of th e company that priced UPS products and services. His duties included development of a flexible pricing project, the Incentive Administration System ("IAS"). In Septemb er 1993, he was promoted to Marketing User Representat ive for the Marketing Information Group in Mahwah, New Jersey. In this position, his responsibilities incl uded addressing, through the IAS or otherwise, UPS's los s of accounts and significant amounts of business to a competitor, Roadway Package Service. His principal supervisor at that time was Gary Hopwood, who was b ased in Atlanta. Hopwood's supervisor was Nicholas Bain, who

was also Atlanta-based.

A. Blackburn's Complaints to His Supervisors

In November 1993, Blackburn first expressed to the IAS project manager, Rich Cooley, his concerns regardin g possible antitrust violations arising out of custom er discounts given through the IAS.2 Blackburn's conce rns allegedly intensified when, in early 1994, UPS bega n to modify its pricing system and combined ground contr acts with air contracts, a "bundling" practice that he a lleged

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1. Also named as a defendant was Patricia Knowles, a supervisor in UPS's Human Resources Department. The District Cour t found that there was no basis for any claims against Knowles a nd dismissed her from the suit. Blackburn does not appear to contest this ruling, focusing his discussion on his claims against UPS. We likewi se will confine our discussion to the issues concerning UPS, and theref ore refer to the singular defendant throughout.

2. In this appeal from summary judgment in favor of defendant, "we view the facts as they are set forth [in the record], in the light most

favorable to the non-moving party [i.e., Blackburn], in order to determine whether there are material issues of disputed fact." Bechte l v. Robinson, 886 F.2d 644, 647 (3d Cir. 1989). References in this opinion to "App." refer to Blackburn's Appendix, while references to "S.A." re fer to the Supplemental Appendix filed by UPS.

3allowed even unprofitable ground customers to be en ticed

with air discounts. Blackburn believed that the IAS project was generally falling apart because of inadequate r esources and a lack of management and direction.

On March 22, 1994, Blackburn first put his concerns in writing, sending a memo to his supervisor, Hopwood. This memo stated, in relevant part:

As per our recent phone conversation, I'm d etailing here areas where I believe that we may run i nto significant problems with respect to Anti-Tr ust issues going forward.

I would appreciate your running these by [U PS in- house attorney] Joel Creamer in order to det ermine whether these issues will present legal obst acles.

1) No security check exists at present to a uthenticate or assure that the information entered by fi eld users is either accurate or valid. As you know, it is important that user information be subject to some typ e of validation process or, the worst case scenar io, we may be providing a discount level that could eas ily be interpreted as predatory in nature.

While I am unsure as to the extent of our o bligation in this area, it seems to me that we must ha ve some type of system in place that will authentica te, to some reasonable degree, the input data that our s ales reps are entering in order to develop prices. To leave this to their discretion is, I believe, flirting wit h disaster under the present scenario.

Obviously, Creamer will have a much better sense about the company's obligation here but to e xpound upon my concern a bit more, it occurs to me that a challenge to our pricing methodology cannot be defended merely by the company taking the po sition that it didn't know what its sales reps were doing in developing discounts. That is to say, it is difficult for me to see where a posture of "see no evil, h ear no evil . . ." is especially wise given our current position in the Ground marketplace. I urge you to take actio n to determine whether this [is] as significant a s I fear it may be down the road.

42) The present combination of Mark Matulavi cus and

Leslie Gilstrap working as representatives o f the Strategic Cost groups causes me grave concer ns as I have been unable, as you know, to get any re al commitment from their manager as to the leve l of comfort we should have in determining whethe r their costing methodology is indeed in line with r egularly accepted costing practices or whether the In centive Administration System is intended to be buil t using trial methodology.

App. at 60 (ellipsis in original).

On April 18, 1994, Blackburn sent another memo to Hopwood about his discomfort with the status of IAS . He suggested that it could not be properly validated a nd that there were many internal failures, including the im proper billing of hundreds of customers. He expressed conc ern that releasing IAS to customers in its present stat e could cause "significant" liability, and "we ought to try and get things straightened out before we end up having to explain ourselves to someone outside of our organization." Id. at 62. On June 3, 1994, Blackburn wrote to Bain, expressin g the view that the IAS project "will have gravely negati ve implications for the organization. . . . Both Rich Cooley and I have serious reservations as to whether the syste m we are building is indeed functioning properly and the pot ential outcome of this may be significant both internally and externally." Id. at 63.

On June 15, 1994, Blackburn wrote another memo to Hopwood, stating that "I have serious concerns abou t the rate we are moving and what I believe to be the gro ss negligence of our group in assuring that the system works properly and, dare I say, within the confines of or dinary accepted business principles." Id. at 64. He could not "in good conscience" sign off on the system without rea sonable testing:

Our billing problems have, I believe, only b eg[u]n to show themselves for what they truly will be come yet another release of the system and I am extre mely uncomfortable with the idea of signing off o n something that is not only wrong but very li kely illegal in the way that it is used.

5You have indicated to me that I should "rel ax" about

this and stated that the issues are too comp lex for ordinary folks to understand. I must say tha t while I agree that the issues are indeed complex, it won't take a rocket scientist to figure out that the me thodology we've used in creating this system lacks a b asic integrity that is at the core of any worthwh ile endeavor. I fear that the result will not only be a lo ss of confidence by our customers but also willing ly and knowingly violates fundamental obligations w e have as an organization to our fellow employees, our customers and the public.

It certainly wouldn't take a genius to pick apart the cost model as it stands at present and I sus pect that we could easily find glaring departures from commonly accepted costing practices. . . .

Last but not least, I believe strongly that any challenge to the practices in place would no t stand a legal litmus test. For this reason, I urge y ou on this count to not only discuss the implications o f this with the legal staff but to also take another cra ck at making the Strategic Costing group aware of the pot ential impact should additional qualified resources not be assigned to work on the project.

Id. at 64-65. Blackburn sent a final memo to Hopwoo d on August 12, 1994:

Yesterday we had [a meeting] at your reques t. I've written up the following summarization in or der to highlight the key points of what became a ve ry disturbing discussion.

. . . In reviewing my performance, you indi cated that I am performing at a very high level technic ally . .. . You also indicated that you feel I need to i mprove in the area of "being a team player".

As you stated, your concern regards my cont inued criticism of the methodology used in IAS to apply pricing formulas which may violate Anti-Trus t regulations.

. . . .

6I believe that I have an obligation to rais e these

concerns and your demand that I "not discuss these with others" is especially difficult in ligh t of the fact that my concerns have been on-going for some time.

. . . .

You have agreed on numerous occasions with both Pat Toomey and myself that this situation mu st be corrected immediately if we are to avoid a s ignificant set of legal problems going forward. . . .

. . . I must nevertheless continue to remin d you of our obligation to assure proper pricing prac tices in light of our role as the marketplace leader in the ground segment.

As I have mentioned to you numerous times, the stress that this subject has caused me is tr emendous and has been instrumental in the development of serious health problems that originally led me to request a transfer from the Marketing Inform ation

group.

While I believe that I have been a solid "t eam player" throughout my career, I am deeply bothered b y your clear message that my success on this projec t depends more on my willingness to [toe] a line of si lence amid seriously questionable and unethical pricing and management practices than on traditional mea sures of accountability.

Your references to me as an "unimaginative stick in the mud", a "snitch" and most interestingly, as a "nosy, bean counting Jew" are unwanted, embarrassin g and frankly, unprofessional.

Id. at 66-67.

Blackburn was fired by UPS on September 29, 1994, approximately seven weeks after his last memo was s ent to Hopwood. He alleges that he was fired for raising w ith his supervisors the possible illegality of UPS's pricin g system, and that his firing violates CEPA.

7B. UPS's Stated Reason for Blackburn's Firing

The position of UPS is twofold. First, it asserts t hat Blackburn's conduct in complaining to his superiors about problems with the IAS did not constitute protected activity under CEPA. Second, UPS contends that Blackburn was fired not for his complaints regarding the IAS, but for violations of UPS's anti-nepotism, favoritism, inte grity, and accountability policies.

UPS has had an anti-nepotism policy in its Policy B ook for management employees since 1965. The 1992 versi on, in effect during the period in question, states:

We Strictly Limit the Employment of Relativ es. .. .

. . . .

. . . [W]e prohibit hiring--for either full -time or part- time employment--relatives of active employe es . .. .

For the same reasons, we discourage continu ation of the full-time or part-time employment of any employee who marries another employee while either pe rson holds a management position in the same dist rict, the same region office or Corporate Headquarters

.

S.A. at 118. The Policy Book does not define "relat ives." The favoritism policy states, "We Treat Our People Fair ly and Without Favoritism. . . . We have the responsibilit y to avoid any relationship that may result in actual or perce ived favoritism." Id. at 123. The integrity policy state s:

We Insist Upon Integrity in Our People. . .

.

. . . We insist on integrity in the prepara tion and approval of all reports.

We expect our people to be honest with resp ect to intangible things as well--in the time, effo rt, and full performance of their jobs; in fair play in d ealing with others; and in the acknowledgment of mistake s or other shortcomings.

. . . [W]hen we do discover a dishonest per son in our organization, we deal with that individual q uickly and firmly.

8Id. at 134. Finally, the accountability policy stat es:

We Are All Accountable for Compliance With Our Policies. As individuals, we do not have the authority to change or disregard any of our company's pol icies. We are expected to follow existing policies, ev en if not always in complete agreement with them. We m ust be careful not to misinterpret or violate a pol icy's spirit and intent. If in doubt, we should check wit h others for guidance.

. . . .

Our managers and supervisors set the exampl e for carrying out our policies. . . . They, there fore, are expected to lead the way for other UPS peopl e--by word and action--in living up to our policies.

Id. at 110. As a management employee, Blackburn rec eived a copy of the Policy Book and was aware of these po licies.

Blackburn married Loren Morrissey in April of 1990. On September 29, 1993, Linda Shepard, Morrissey's sist er, applied for a job at UPS's Mahwah facility. Shepard stated on her employment application that she did not have any relatives employed by UPS. In December of 1993, She pard was hired as a Methods Analyst at Mahwah, and began work in the same building as Blackburn. Blackburn w as aware that Shepard had applied for and gotten the j ob, and at times commuted to work with Shepard and had cont act with her during the workday by, for example, meetin g her for lunch. At no time before September 1994 did Bla ckburn disclose his relationship with Shepard to UPS. See id. at 14 (Pl.'s Dep. at 182-83). At various times after Shep ard's hiring, and before September 1994, Blackburn recommended Shepard for other UPS positions without informing those to whom he made the recommendations that Shepard was his sister-in-law.

On September 14, 1994, UPS's Loss Prevention Department received an anonymous complaint, forward ed to Patricia Knowles of UPS's Human Resources Depart ment at Mahwah, that Blackburn was Shepard's brother-in- law. The complaint also expressed concern that Shepard m ight be promoted because of Blackburn's influence. That same

9day, Knowles and UPS manager Nigel Watson met with

Shepard and questioned her regarding her relationsh ip with Blackburn. After initially denying that Blackburn w as her brother-in-law, Shepard eventually admitted that he was married to her sister. However, she gave an incorre ct date for Blackburn's marriage to her sister, claiming th at they were married in April 1994, after Shepard had been hired by UPS.

After verifying the actual date of Blackburn's marr iage (through UPS's Human Resources Department in Atlant a), Knowles confronted Blackburn on September 15, 1994. Blackburn denied that he was "related" to Shepard b ut

admitted that he was married to her sister. He also expressed disbelief that the relationship was of co ncern to UPS. On September 16, Knowles met again with Shepar d, who claimed that Blackburn was aware that Shepard w as interviewing with UPS when she originally sought a job there. On September 29, 1994, UPS offered Shepard a chance to resign, on the grounds that she had lied on her application (by indicating that she was not related to anyone at UPS) and had lied to Knowles when confron ted with this information. Shepard resigned on Septembe r 30,

1994.

Also in September, Blackburn's supervisor, Hopwood, was informed of the events surrounding Shepard's hi ring and her relationship to Blackburn. Hopwood spoke wi th Blackburn and, upon learning the identity of Blackb urn's sister-in-law, realized that she was the person Bla ckburn had recommended to him and another manager for openings in the department without informing them t hat she was his sister-in-law. Blackburn allegedly refu sed to acknowledge that his conduct was inappropriate, and told Hopkins that UPS would regret it if it pursued the matter.

On September 29, 1994, Hopwood's supervisor Bain an d Human Resources manager James Daniels met with Blackburn, who stated that he was not "related" to Shepard but that he was her brother-in-law. He denied any misconduct in permitting her to be hired, recommend ing her for positions without revealing the nature of t heir relationship, and claiming not to be related to her . Bain advised Blackburn that he had violated the anti-nep otism

10policy and the policies on favoritism, integrity, a nd

accountability. That day, after consultation with D aniels and two Human Resources coordinators, Bain fired

Blackburn.

C. The Ensuing Litigation

In August 1995, Blackburn filed suit in New Jersey state court, claiming that UPS had fired him in violation of CEPA, and seeking compensatory and punitive damages, attorneys' fees, costs, and such other relief as th e court might provide. UPS removed the case to the District Court for the District of New Jersey on the basis of dive rsity jurisdiction. See 28 U.S.C. S 1332. 3 Following dis covery, UPS moved for summary judgment under Federal Rule o f Civil Procedure 56(b).

The District Court found that Blackburn's conduct w as not covered by CEPA, and it therefore granted summa ry judgment for UPS. See Blackburn v. United Parcel Se rv., Inc., 3 F. Supp. 2d 504, 514-17 (D.N.J. 1998). The District Court's conclusion that Blackburn's complaints rega rding the IAS did not constitute protected activity under CEPA was based on a number of factors. First, the court stated that it "must determine, as a matter of law, whethe r there

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3. Blackburn was a citizen of Connecticut at the ti me suit was filed. UPS

is a citizen of New York. Knowles is a citizen of N ew Jersey. Therefore, complete diversity exists and subject-matter jurisd iction is proper. However, we note that this case was technically not removable under 28 U.S.C. S 1441 (1994), as a civil action in which ju risdiction is based on diversity of citizenship may be removed "only if no ne of the parties in interest properly joined and served as defendants i s a citizen of the

State in which such action is brought." Id.S 1441(b). Her e, one of the

defendants is a citizen of the state in which the a ction was brought. Nonetheless, under 28 U.S.C. S 1447(c) (Supp. II 19 96), this defect is waived if not raised within 30 days after the notic e of removal is filed.

No motion to remand having been filed within this peri od, jurisdiction in the District Court was properly exercised. Cf. Korea Ex ch. Bank v. Trackwise Sales Corp., 66 F.3d 46, 50-51 (3d Cir. 1995) ("Bec ause removal by a forum defendant in noncompliance with section 1441( b) does not deprive a federal court of subject matter jurisdiction, it is clear under section 1447(c) that this irregularity must be the subject of a motion to remand within 30 days after filing the notice of removal." ).

11exists a clear expression of law, either in a statu te or rule

or in a regulation promulgated pursuant to a statut e, that `would be violated if the facts as alleged are true .' " Id. at 514 (citation and emphasis omitted). It then held t hat Blackburn had not provided the court "with a scinti lla of evidence . . . that would permit [the] court to con clude, as a matter of law, that any antitrust law would be vi olated if the facts, as described by plaintiff, were true." I d. The court found instead that Blackburn had only complained to his supervisors "that a law might someday be violated i f certain precautions [were] not taken or certain changes [we re] not made," and that this complaint about potential futu re violations of the law was not covered by CEPA. Id.

The court also held that no reasonable trier of fac t could find that Blackburn reasonably believed that the co nduct he complained of to his supervisor violated the ant itrust

laws. See id. at 515. The court found that all of t he evidence, even viewed in a light most favorable to Blackburn, demonstrated that he "merely questioned and disagreed with UPS's pricing practices and was conc erned about the potential legal impact." Id. at 517. It c oncluded that "[t]hese type of complaints do not constitute `whistleblowing,' particularly where the vague refe rences to potential illegalities are mixed with and, indeed, dwarfed by a potpourri of other unrelated complaints." Id. (ci tation omitted). For these reasons, the court granted UPS' s motion for summary judgment. The District Court did not re ach the pretext issue on which we base our decision,fin ding that a genuine issue of material fact existed regar ding UPS's claimed reason for firing Blackburn. See id. at 508

n.2.

Blackburn filed a timely notice of appeal. We have jurisdiction to hear the appeal under 28 U.S.C. S 1 291. We exercise plenary review over a grant of summary jud gment, "construing all evidence and resolving all doubts r aised by affidavits, depositions, answers to interrogatories , and admissions on file in favor of the non-moving party ." Iberia Foods Corp. v. Romeo, 150 F.3d 298, 302 (3d Cir. 19 98).

12II. The New Jersey Conscientious Employee

Protection Act

A. Introduction

The New Jersey Conscientious Employee Protection Ac t, enacted in 1986, provides in relevant part:

An employer shall not take any retaliatory action against an employee because the employee doe s any of the following:

a. Discloses, or threatens to disclose to a supervisor or to a public body an activity, policy or p ractice of the employer . . . that the employee reasonably believes is in violation of a law, or a rule or regulati on promulgated pursuant to law . . .;

. . . .

c. Objects to, or refuses to participate in any activity, policy or practice which the employee reason ably

believes:

(1) is in violation of a law, or a rule or regulation promulgated pursuant to law . . .;

(2) is fraudulent or criminal; or

(3) is incompatible with a clear mandate of public policy concerning the public health, safety or welfare or protection of the environment.

N.J. Stat. Ann. S 34:19-3 (1988 & Supp. 1999)."Reta liatory action" includes discharge, suspension, demotion, o r other adverse action involving an employee's terms and conditions of employment. See id. S 34:19-2(e).

The New Jersey courts have repeatedly held that CEP A was enacted "to protect employees from retaliatory actions by employers," Abbamont v. Piscataway Township Bd. of Educ., 650 A.2d 958, 964 (N.J. 1994), and that it i s "remedial legislation" that should be liberally con strued to effectuate the legislature's protective intent, see Young v. Schering Corp., 660 A.2d 1153, 1158 (N.J. 1995); se e also Barratt v. Cushman & Wakefield, Inc., 675 A.2d 1094 , 1098 (N.J. 1996) ("[C]ourts should construe CEPA liberal ly to

13achieve its remedial purpose."). Like the New Jerse y Law

Against Discrimination ("LAD"), CEPA "seeks to over come the victimization of employees and to protect those who are especially vulnerable in the workplace from the imp roper or unlawful exercise of authority by employers." Abbam ont, 650 A.2d at 964. In interpreting CEPA's various pro visions, New Jersey courts have held that its protections sh ould be construed broadly and its exceptions and limitation s read narrowly:

The words used may be expanded or limited ac cording to the manifest reason and obvious purpose o f the law. . . . The language is not to be given a rigi d interpretation when it is apparent that such meaning

was not intended. The rule of strict constru ction cannot be allowed to defeat the evident legi slative design.

Crusco v. Oakland Care Ctr., Inc., 702 A.2d 1363, 1 367 (N.J. Super. Ct. App. Div. 1997) (internal quotatio n omitted).

B. Elements of a CEPA Case

Our analysis of a retaliatory discharge claim under CEPA is similar to our analysis of a retaliation claim u nder federal discrimination law. Cf. Velantzas v. Colgate-Palmol ive Co., 536 A.2d 237, 238 n.1 (N.J. 1988) (citing federal c ourt decisions on retaliatory discharge in a case arisin g under New Jersey law); Kolb v. Burns, 727 A.2d 525, 530-3 1 (N.J. Super. Ct. App. Div. 1999) (adopting the federal co urt analysis of retaliation claims "as legally sound an d consistent with New Jersey's general treatment of c laims asserted under anti-discrimination [legislation]"). First, the plaintiff must make out a prima facie case of retal iatory discharge. The court in Kolb held that a CEPA plain tiff

must demonstrate four elements to meet this initial burden:

(1) that he or she reasonably believed that his or her employer's conduct was violating either a la w or a rule or regulation promulgated pursuant to law; ( 2) that he or she performed whistle-blowing activity de scribed in [CEPA]; (3) an adverse employment action was taken against him or her; and (4) a causal connect ion exists

14between the whistle-blowing activity and the adverse

employment action.

Id. at 530; see also Young v. Schering Corp., 645 A .2d 1238, 1244 (N.J. Super. Ct. App. Div. 1994) [Young I] (li sting two elements for prima facie case: a " `belief that ill egal conduct was occurring [that] had an objectively reasonable basis in fact' " and an adverse employment action that was c ausally connected to the plaintiff's disclosure or threaten ed disclosure of the illegal conduct to a supervisor o r public body (citation omitted)), aff'd, 660 A.2d 1153 (N.J . 1995); cf. Kachmar v. SunGard Data Sys., Inc., 109 F.3d 17 3, 177 (3d Cir. 1997) (holding that a plaintiff in a feder al retaliation case "must show 1) that she engaged in protected activity, 2) that the employer took adver se action against her, and 3) that a causal link exists betwe en the protected activity and the employer's adverse actio n").

In addition to the prima facie case, the well-estab lished burden-shifting analysis that is used in federal discrimination cases involving "pretext" claims is appropriately used in a CEPA case. See Kolb, 727 A. 2d at 530-31 (outlining the burden-shifting analysis unde r Title VII and LAD). Once the plaintiff meets his prima fa cie burden, "the burden of production shifts to the def endant to `articulate some legitimate, nondiscriminatory r eason' for its actions." Woodson v. Scott Paper Co., 109 F.3d 913, 920 n.2 (3d Cir.) (quoting McDonnell Douglas Corp. v. G reen, 411 U.S. 792, 802 (1973)), cert. denied, 118 S. Ct. 299 (1997). Once the defendant articulates a legitimate reason for the adverse employment action, the presumption of retaliatory discharge created by the prima facie ca se disappears and the burden shifts back to the plaint iff. See id. Then, "[t]o prevail at trial, the plaintiff mus t convince the factfinder `both that the reason [given by the employer] was false, and that [retaliation] was the real reas on.' " Id. (quoting St. Mary's Honor Ctr. v. Hicks, 509 U.S. 5 02, 515 (1993) (emphasis omitted)).

For summary judgment purposes, the court must determine whether the plaintiff has offered suffici ent evidence for a reasonable jury to find that the emp loyer's proffered reason for the discharge was pretextual a nd that retaliation for the whistleblowing was the real rea son for

15the discharge. See Sempier v. Johnson & Higgins , 4 5 F.3d

724, 728 (3d Cir. 1995) ("[T]o defeat a summary jud gment motion based on a defendant's proffer of a nondiscriminatory reason, a plaintiff who has made a prima facie showing of discrimination need only point to evidence establishing a reasonable inference that the employ er's proffered explanation is unworthy of credence."). T ypically, the types of evidence that the plaintiff must point to are "inconsistencies or anomalies that could support an inference that the employer did not act for its sta ted reasons." Id. at 731; see also Kolb , 727 A.2d at 5 31 (citing Third Circuit Title VII case law regarding plaintif f's burden to show pretext at summary judgment stage).

III. Blackburn's CEPA Claim

A. Prima Facie Case

In this case, the District Court found that Blackbu rn had failed to make out a prima facie case because he ha d not shown that he had engaged in protected whistleblowi ng activity. Given New Jersey case law and the intent of the legislature in enacting CEPA, we have some doubt as to the

correctness of the District Court's conclusion on t his point.4

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4. As noted in the text supra, the District Court r elied primarily on the fact that Blackburn had not clearly articulated the precise law that UPS would be violating if its actions were as he allege d, and that he only complained of potential future violations of the la w, rather than ongoing violations. We note, however, that New Jersey court s have held that a CEPA plaintiff need not cite "any specific statute, rule or regulation which was allegedly violated" when disclosing emplo yer wrongdoing or even when filing a CEPA action. Regan v. City of Ne w Brunswick, 702 A.2d 523, 528-29 (N.J. Super. Ct. App. Div. 1997). For example, in Mehlman v. Mobil Oil Corp., 707 A.2d 1000 (N.J. 199 8), the plaintiff complained about his employer's conduct without bei ng aware of any specific laws, guidelines, or government policies t hat his employer was violating. The court nonetheless held that "[s]peci fic knowledge of the precise source of public policy [allegedly violated ] is not required. The object of CEPA is not to make lawyers out of consci entious employees but rather to prevent retaliation against those emp loyees who object to employer conduct that they reasonably believe to be unlawful or indisputably dangerous to the public health, safety or welfare." Id. at

1015-16.

16However, rather than engage in a lengthy exegesis o n the

matter, we will assume that Blackburn presented suf ficient evidence to meet his prima facie burden at the summ ary judgment stage, and will dispose of this appeal on the alternative ground that he has presented insufficie nt evidence of pretext to survive summary judgment.

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Further, while CEPA is not intended to protect chro nic complainers or those who simply disagree with their employer's law ful actions, it does protect those persons who disclose their employer's activities when, "given the circumstantial evidence, a reasonable la y person would conclude that illegal activity was going on." Young I, 645 A.2d at 1244 (internal quotation omitted); see also Mehlman v. M obil Oil Corp., 676 A.2d 1143, 1156 (N.J. Super. Ct. App. Div. 1996) (" The sine qua non of

a CEPA claim is not the actual occurrence of a viol ation of promulgated authority or public policy, but rather the existenc e of a reasonable

belief to the effect that such authority or policy has bee n breached."), aff'd, 707 A.2d 1000 (N.J. 1998). Finally, the New Jersey Supreme Court has refused to engraft either temporal or geographic li mitations onto CEPA claims, holding that disclosure of past violations of law or complaints regarding violations of another nation's laws are b oth protected under the statute. See Mehlman, 707 A.2d at 1016-17; Barr att, 675 A.2d at 1100 ("CEPA protects more than the disclosure of il legal acts that are ongoing. To require employees to confirm that the i llegal conduct was ongoing would inhibit them from reporting that cond uct. Disclosure of illegal conduct that is past, moreover, like that o f ongoing conduct, can be in the public interest.").

On the other hand, while the New Jersey courts have construed CEPA broadly, it is clear that much of Blackburn's lamen tation involved internal disputes over funding and staffing. More i mportantly, his allegations regarding one of the most complex and d ifficult-to-prove areas of antitrust law--predatory pricing--are unde rmined by his patent lack of sophistication in this area. In fact, Black burn conceded that "all

I know about anti-trust is what I've learned at UPS ." App. at 53. Despite being liberally construed by the New Jersey courts, CEPA is not intended to shelter every alarmist who disrupts his employer 's operations by constantly declaring that illegal activity is afoot --or, as in this case,

is about to be afoot. Therefore, we believe it is a cl ose question whether

the District Court correctly concluded that Blackburn's activity was not protected whistleblowing under the Act, and we decl ine to reach this difficult issue, as our ultimate decision in this c ase makes it unnecessary to do so.

17B. UPS's Stated Reason for the Discharge

UPS's stated reason for firing Blackburn was his vi olation of the company's anti-nepotism, favoritism, integri ty, and accountability policies, which it placed in the rec ord. UPS adduced evidence that Blackburn failed to divulge t hat Shepard was his relative, and that he recommended h er for positions within UPS without disclosing to the rele vant

decisionmakers that she was his sister-in-law. UPS also offered evidence that it has consistently enforced its antinepotism policy, which supports its proffer that Blackburn's violation of this policy was the actual reason he was discharged.5 Indeed, Blackburn himself conce ded at his deposition that UPS has regularly enforced the antinepotism policy (although, as we detail below, he o ffers purported examples of the policy's nonenforcement). Therefore, UPS has met its burden of production at the second step of the burden-shifting analysis. See Wo odson, 109 F.3d at 920 n.2 ("The defendant's burden at thi s stage is relatively light: it is satisfied if the defenda nt articulates any legitimate reason for the discharge . . . ."). It is thus incumbent upon Blackburn to offer sufficient admiss ible evidence that this justification is pretextual and that the real reason that he was fired was for complaining a bout UPS's possible antitrust violations to survive UPS' s motion for summary judgment. In other words, he must show " `weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons.' " Kolb, 727 A.2d at 531 (quoti ng Fuentes v. Perskie, 32 F.3d 759, 765 (3d Cir. 1994) ).

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5. While Blackburn has suggested that the anti-nepo tism policy does not apply to his situation because Shepard is not a blo od relation, he does not press this point, relying instead on UPS's purp orted nonenforcement of the policy. However, UPS alleges that Blackburn' s conduct also violated its favoritism, integrity, and accountabil ity policies, and he

has offered little evidence in response to this proffer

.

18C. Pretext

1. Blackburn's Evidence

In order to meet his burden, Blackburn must point t o admissible evidence in the record "showing that the re is a genuine issue for trial." Fed. R. Civ. P. 56(e). In attempting to show that UPS's stated reason for firing him was pretextual, Blackburn claims that he never hid his relationship with Shepard. Rather, he testified tha t he regularly commuted to and from work with her, enter ed the building with her each day, often met her for lunch and breaks, displayed a wedding picture prominently on his desk with Shepard in the wedding party, and was oth erwise open about the relationship, including the fact tha t they shared an address. Similarly, Shepard testified tha t she told colleagues about the relationship and even inq uired about it at her initial interview, and nothing was done.

Blackburn also testified that he assumed that the prohibition on the hiring of "relatives" included o nly blood

relatives.6

We find the foregoing less than persuasive evidence to support Blackburn's burden, even at summary judgmen t, of proving that UPS's stated reason was pretextual. The only portion of this evidence that is probative of pretext-- i.e., that UPS knew of Blackburn's relationship to Shepard but did nothing about it, and later fired him for h is whistleblowing activity under the pretext of its an tinepotism policy--is Shepard's allegation that, when she applied for a job at UPS, she informed the initial interviewer

that her brother-in-law worked for UPS. There is no

indication that the decisionmakers who fired Blackb urn for his violations of the anti-nepotism and related pol icies were informed of Shepard's comments at her interview. In fact,

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6. Although UPS's policy was less than clear in def ining the prohibited relationships, the clarity of the policy or the rea sonableness of Blackburn's alleged misreading of the policy are no t necessarily relevant to the pretext issue. If the policy actually covere d relationships such as Blackburn and Shepard's, and if this (along with th e concomitant violations of the other policies) was the real reas on that Blackburn was discharged, Blackburn's CEPA case must fail.

19the record evidence overwhelmingly supports the

conclusion that the relevant UPS managers were unaw are of Blackburn's relationship with Shepard until the anonymous tip was received in September 1994, at wh ich time immediate action was taken against both Shepar d and Blackburn. Cf. Delli Santi v. CNA Ins. Cos., 88 F.3 d 192, 201-02 (3d Cir. 1996) (holding that jury could find that employer had retaliatory intent because relevant decisionmakers were aware of plaintiff's discrimina tion complaints).

Blackburn's stronger argument for pretext--and one that would be sufficient to preclude summary judgment, i f supported by adequate admissible evidence--is that UPS did not consistently enforce its anti-nepotism poli cy, which, according to UPS, was the primary basis for his dis charge. If Blackburn has presented admissible evidence that would raise a fact question whether UPS enforced its anti nepotism policy, it would be for a jury to decide w hether UPS's proffered reason for firing him was pretextua l. Given our assumption that Blackburn has presented suffici ent evidence to meet his prima facie burden under CEPA, we would have to reverse summary judgment in UPS's fav or if a fact issue regarding pretext existed.

In support of his pretext argument, Blackburn provi des numerous examples of UPS employees who were related to other employees yet allegedly were not disciplined or terminated for this apparent violation of the anti- nepotism policy. His examples include brothers-in-law, sibli ngs, spouses, uncles and nephews, fathers and sons, and intimate relationships between employees who were d ating or living together. UPS responds with evidence that , within the last five years, twenty-nine people at Mahwah l eft UPS in accordance with the anti-nepotism policy, and th at no exceptions currently exist there.

In order to resolve this issue, we must first deter mine whether any of Blackburn's evidence in this regard is admissible, based as it is on hearsay and, in some instances, multiple hearsay. See Philbin v. Trans U nion Corp., 101 F.3d 957, 961 n.1 (3d Cir. 1996) (noting that a hearsay statement that is not capable of being admi ssible at trial should not be considered on a summary judg ment

20motion). Then, we must determine whether the hearsa y

evidence that might be admissible at trial is suffi cient to defeat UPS's summary judgment motion or whether judgment was properly entered in favor of UPS. See Petruzzi's IGA Supermarkets, Inc. v. Darling-Del. C o., 998 F.2d 1224, 1234 n.9 (3d Cir. 1993).

Blackburn's testimony regarding UPS employees he believes to be related includes the following. We t ake the descriptions of these allegedly related persons fro m Blackburn's appellate briefs, see Appellant's Br. a t 16-17; Suppl. Br. at 1-3, with citations to the place in t he record in which the evidence is presented:

(1) Bill and Tim Jawor, a father and son (Ap p. at 109);

(2) Jackie and Sal Biancardi, a married coup le who work at the UPS facility in Morristown (id.) ;

(3) Larry Zileski and Mr. Manzi, brothers-in -law (id. at 95);

(4) Barry Graziano and Tim Krill, relation n ot identified (id. at 96);

(5) Steve Collamore and Eileen O'Connor, hus band and wife (id. at 97);

(6) an uncle and nephew working together at a UPS facility in Parsippany (id. at 103-04);

(7) two brothers in New York (id.);

(8) Mark Hopkins and his wife, Beth (id. at 97);

(9) Bill and Art Weyrauch, brothers (id. at 96-97);

(10) Don McKenny and Vern Cormie, relation n ot identified (id. at 97);

(11) Joe Rossano, Jack Davies, and Joe Reyno lds, relation not identified (id.);

(12) Lorrain Curley and Dan Grace, relation not identified (id.);

(13) Karen Montemarano and another driver in a Yorktown, New York, UPS facility (id.);

21(14) Kathleen Jewell and someone else, relat ion not

identified (id. at 101); and

(15) Howard Kaufman and "Mindy," in the Mt. Vernon facility (id. at 101-02).

Blackburn has no personal knowledge of any of the alleged relationships listed above. See Fed. R. Evi d. 602. Rather, he testified in his deposition that he was told of these relationships by other persons. The alleged relationships are offered for their own truth. Ther efore, Blackburn's information is based on hearsay, see Fe d. R. Evid. 801(c), and in some cases on multiple hearsay , so that it must fall within an exception to the rule a gainst hearsay to be admissible. See Fed. R. Evid. 802 (pr oviding that hearsay is not admissible unless it falls unde r a particular exception); Fed. R. Evid. 805 (providing that multiple hearsay is admissible "if each part of the combined statements conforms with an exception to the hearsa y rule").

When asked by us to comment on the admissibility of his pretext evidence, and in particular on the applicab ility of Federal Rule of Evidence 803(19), Blackburn respond ed that this evidence was admissible as admissions by a partyopponent, Fed. R. Evid. 801(d)(2)(A), admissions by a partyopponent's agent, Fed. R. Evid. 801(d)(2)(D), state ments against interest, Fed. R. Evid. 804(b)(3), or reput ation evidence concerning family history, Fed. R. Evid. 8 03(19). We consider the first, second, and fourth of these

contentions below. We dismiss as without merit Blackburn's attempt to admit any of the evidence he has presented under the exception for statements agains t interest. Not only do we find the contention that t he particular statements at issue were "against intere st" to be baseless within the meaning of the Rule,7 but ther e is no

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7. A statement is against interest when it "is so f ar contrary to [the declarant's] pecuniary, proprietary or penal intere st that `a reasonable person in the declarant's position would not have m ade the statement unless believing it to be true.' " United States v. Boyce, 849 F.2d 833, 836 (3d Cir. 1988) (quoting Fed. R. Evid. 804(b)(3) ). Blackburn has

offered no evidence that unavailable declarants mad e"statements which are damaging to themselves," Fed. R. Evid. 804(b)(3 ) advisory committee's note, so as to come under the exception in the Rule.

22indication that the hearsay declarants are unavaila ble, as

required by Rule 804.

2. Rule 801(d)(2)(A): Admissions by Party-Opponent

Under Rule 801(d)(2)(A), a statement offered agains t a party is not hearsay if it is the party's own state ment. Blackburn claims that the first two relationships l isted above fall within the terms of Rule 801(d)(2)(A), b ecause these relationships were identified by defendant Pa tricia Knowles at her deposition. Admissions by a party-op ponent need not be based on personal knowledge to be admit ted under Rule 801(d)(2). See United States v. Ammar, 7 14 F.2d 238, 254 (3d Cir. 1983). Therefore, we need not be

concerned here that the basis for Knowles's stateme nt is likely hearsay--i.e., she was told by someone (or d iscerned from a written document) that Bill and Tim Jawor we re father and son, and that Jackie and Sal Biancardi w ere married--which would ordinarily require an addition al exception to make her statements admissible. See Fe d. R.

Evid. 805.

Although these statements are admissible as admissi ons by a party-opponent,8 only one is arguably relevant to the pretext issue. Knowles testified that the Jawors wo rked at UPS in 1973, more than twenty years before Blackbur n was fired and before UPS's current anti-nepotism policy was in force. We therefore find the testimony regarding th e Jawors immaterial to the pretext issue.9 On the other hand

,

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8. We note, however, that the statements by Knowles might be more appropriately admitted under Rule 801(d)(2)(D), as statements of an agent concerning a matter within the scope of her a gency, as Knowles is technically no longer a party to this case. Further , if the statements

were admissible under Rule 801(d)(2)(D), they would be a dmissible against UPS, while the statements would be admissible under Rule 801(d)(2)(A), if at all, only against Knowles.

9. Although he appears to have abandoned his relian ce on it, Blackburn's initial testimony regarding two sets of brothers--the Caseys

and the Oberkotters--is indicative of the lack of r elevance of much of his pretext evidence. Both of these sets of brothers wo rked for UPS in the 1920s, many decades before the company established its current antinepotism policy.

23Knowles testified that the Biancardis remain UPS

employees, Jackie as an administrative assistant an d Sal as a driver. This could therefore be probative evidenc e in support of Blackburn's pretext argument. However, t he anti-nepotism policy prohibits only the hiring of r elated persons, and the continued employment of persons wh o marry while working for UPS when one of them is a management employee. The Biancardis reportedly were married after both had begun working for UPS, and n either holds a management position, so their continued employment does not appear to come within the prohibitions of the anti-nepotism policy.

3. Rule 801(d)(2)(D): Admissions by Party-Opponent's Agent

Blackburn argues that testimony regarding the relationships of Larry Zileski and Mr. Manzi; Barry Graziano and Tim Krill; Steve Collamore and Eileen O'Connor; the unnamed uncle and nephew working together at the UPS facility in Parsippany; and the unnamed brothers in New York, are all admissible as admissions by UPS's employees, under Rule 801(d)(2) (D). Blackburn reads the Rule much too broadly, however, and

fails to establish that most of these statements we re made by UPS's agents or employees "concerning a matter w ithin the scope of the agency or employment." Fed. R. Evi d. 801(d)(2)(D). We discuss each alleged relationship in turn.

First, Blackburn testified that a UPS employee, Joh n Cipriani, informed him that UPS employees Larry Zil eski and a Mr. Manzi were brothers-in-law. Cipriani's po sition is not identified, however, and there is no indication that the statement was made concerning a matter within the s cope of Cipriani's agency or employment with UPS.10 Blac kburn

testified that Zileski himself told Blackburn that Manzi was

his brother-in-law. This statement too is inadmissi ble hearsay under Rule 801(d)(2)(D). Although Zileski m ay be able to so testify on the basis of Rule 803(19), se e infra,

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10. It is also clear that Cipriani is not a party-o pponent, and there is

no indication that he either is authorized by UPS to s peak for it or is its coconspirator. See Fed. R. Evid. 801(d)(2).

24there is again no indication that he was speaking f or UPS

on a matter within the scope of his agency or emplo yment so that Blackburn could testify as to what Zileski told him.11

Blackburn testified that UPS Operations Manager

Michael Lattari informed him that Graziano and Kril l were somehow related. While Lattari may have been speaki ng about a matter within the scope of his agency or employment, Blackburn has offered no evidence of th e actual relationship between Graziano and Krill, whe ther it was one that was covered by the UPS policy, and whe ther UPS addressed any violation of the policy by discha rging one of the employees. Therefore, while this may be appropriate Rule 801(d)(2)(D) evidence, it would be immaterial to prove that UPS's stated reason for discharging Blackburn was pretextual.

Blackburn testified that Steve Collamore told him t hat Collamore's wife, Eileen O'Connor, also worked for UPS. However, Blackburn admitted that at some point afte r they got married, O'Connor left UPS, and there is no ind ication that they were both allowed to remain at UPS in vio lation of the anti-nepotism policy. Finally, while Linda S hepard testified that she was told of certain related empl oyees by the person who interviewed her for a job at UPS, th ese employees are not even identified by name and no testimony was provided as to whether they were disc iplined for violating UPS's anti-nepotism policy. We find t his evidence plainly inadmissible to prove pretext, bot h because Blackburn has failed to establish that it is proper Rule 801(d)(2)(D) evidence and because, without more det ails regarding the alleged relationships and UPS's failu re to act on them, they are clearly irrelevant to the pretext issue.

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11. Blackburn's testimony about what Zileski told h im might be admissible as a "statement concerning the declarant 's own . . . relationship by . . . marriage." Fed. R. Evid. 804( b)(4) (hearsay exception for statements of personal or family history). Howe ver, under Rule 804(b), such a statement is admissible only "if the declarant is unavailable as a witness." Here, unless there is so me indication in the record that Zileski will be unavailable, Blackburn' s statement about what Zileski told him does not fall within an excep tion to the rule against hearsay.

254. Rule 803(19): Reputation Concerning Personal or

Family History

As all of Blackburn's evidence that we are consider ing here involves "personal or family history," the hea rsay exception in Rule 803(19) would appear to be a part icularly appropriate basis for finding the evidence admissib le. The

Rule allows for the admission of otherwise excludab le hearsay, regardless of the declarant's availability (or lack thereof), when it consists of:

Reputation among members of a person's fami ly by blood, adoption, or marriage, or among a per son's associates, or in the community, concerning a person's birth, adoption, marriage, divorce, death, l egitimacy, relationship by blood, adoption, or marriage , ancestry, or other similar fact of personal or family history.

Fed. R. Evid. 803(19).

a. Background Principles

The matters of personal and family history that are within the ambit of Rule 803(19) are often difficul t to prove through personal knowledge. For example, if a witne ss has not been present at someone's wedding, or has not personally seen that person's valid marriage licens e and executed marriage certificate, see, e.g., N.J. Stat . Ann. SS 37:1-2, 37:1-17 (1968 & Supp. 1999), he or she presumably could only testify regarding the marriag e on the basis of hearsay. However, "[m]arriage is universal ly conceded to be a proper subject of proof by evidenc e of reputation in the community." Fed. R. Evid. 803(19) advisory committee's note. This is no doubt because a wellgrounded belief that two persons are married--by th ose who know them, have attended their family functions , and have regarded them as a married couple--is sufficie ntly reliable evidence to prove the fact of the marriage . Other matters of personal and family history also "seem t o be susceptible to being the subject of well founded re pute." Id. That two community members are brothers or that a member of the community is another member's father are likely to be matters that have been discussed withi n the community and that have become well-established "fa cts" if

26no reason has been presented to doubt their truth.

Therefore, reputations regarding relationships and other personal and family matters within a well-defined community are considered to have the circumstantial guarantee of trustworthiness that justifies a hears ay exception. See 3 Stephen A. Saltzburg et al., Feder al Rules of Evidence Manual 1699 (7th ed. 1998) ("[G]eneral reputation about facts of interest to the community is probably trustworthy . . . .").

In applying the Rule 803(19) exception to Blackburn 's evidence of relatives working at UPS, we must answe r at least two questions. First, does a person's place o f work come within the Rule's coverage? And second, what foundation is required for testimony to be admitted under Rule 803(19)? In other words, is Blackburn's eviden ce sufficiently based on actual "reputation," or is it based on some other, less reliable foundation such as rumor or speculation?

b. Relevant Community for Reputation

On the first question, we believe that Rule 803(19) , in referring to "reputation . . . among a person's ass ociates, or in the community," encompasses one's reputation at a place of work. The advisory committee certainly for esaw this application of the exception in Rule 803(19): "The `world' in which the reputation may exist . . . has proved capable of expanding with changing times from the s ingle uncomplicated neighborhood, in which all activities take place, to the multiple and unrelated worlds of work

, religious affiliation, and social activity, in each of which a reputation may be generated." Fed. R. Evid. 803(19) advisory committee's note. In the context of reputa tion evidence of a person's character, "courts have read ily extended the concept of community to include the community in which one works, as well as where one lives." United States v. Oliver, 492 F.2d 943, 946 (8th Cir . 1974).12

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12. We of course do not decide here whether a witne ss could testify regarding someone's reputation for good (or bad) ch aracter within a work community, cf. Fed. R. Evid. 803(21) (providing a h earsay exception for "[r]eputation of a person's character among associa tes or in the community"), as this issue is not before us.

27Both before and since enactment of the Federal Rule s,

commentators have made the same point. See 5 Wigmor e on Evidence S 1616, at 591 (James H. Chadbourn rev. 1974) ("The traditional requirement about `neighbor hood' reputation was appropriate to the conditions of the time; but it should not be taken as imposing arbitrary li mitations not appropriate in other times."); 5 Weinstein's Fe deral Evidence S 803.24[2] (Joseph M. McLaughlin ed., 2d ed. 1999) ("Allowing such proof [under Rule 803(19)] to come from `associates' reflects the fact that nowadays a person's reputation may no longer exclusively be found in th e place where the person lives, but frequently can only be ascertained from coparticipants in the varied activ ities that make up a modern person's world.").

c. Trustworthiness of Reputation Evidence Concernin g Family History; Foundational Requirements

As for the basis of the reputation evidence regardi ng relationships within a workplace, we find little gu idance in the sparse case law surrounding Rule 803(19).13 We believe, however, that the principle behind admitting such e vidence despite its hearsay origin--i.e., "that general rep utation about facts of interest to the community is probabl y trustworthy," Saltzburg et al., supra, at 1699--req uires that a proponent of Rule 803(19) evidence establish that the reputation testimony arises from sufficient inquiry and discussion among persons with personal knowledge of the

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13. This court has cited Rule 803(19) in holding th at a witness's testimony regarding her own age "can be considered reputation concerning personal or family history, for which an exception has been made to the hearsay rule under the Federal Rules of Evidence." Government of V.I. v. Joseph, 765 F.2d 394, 397 n.5 (3d Cir. 1985). A

district court within our circuit has held that fam ily members' statements that a particular person lived with the plaintiff, supported her financially, and held her out as his child, wer e admissible under Rule 803(19) in a proceeding to determine if the pl aintiff was the person's child. See McBride v. Heckler, 619 F. Supp . 1554, 1561-62 (D.N.J. 1985). More recently, the Second Circuit in voked the Rule to find that testimony by a criminal defendant's father reg arding his belief as to

where the defendant was born was admissible. See Un ited States v. JeanBaptiste, 166 F.3d 102, 110 (2d Cir. 1999).

28matter to constitute a trustworthy "reputation." Ru mors

and speculation are clearly insufficient in this re gard. Testimony by a declarant that he heard, from some unknown source, that two people were related in som e way would be inadmissible under Rule 803(19). Rather, w hat is required is the laying of a foundation of knowledge grounded in inquiry, discussion, interactions, or f amiliarity "among a person's associates, or in the community" in

which he works.

We find support for our reading of the Rule in a nu mber of places. In discussing the rationale behind the R ule, Weinstein notes that "it is likely that these matte rs have been sufficiently inquired about and discussed with persons having personal knowledge so that a trustwo rthy

consensus has been reached." Weinstein's Federal Evidence, supra, S 803.24[1]. Weinstein continues:

Before a witness can testify to reputation, the witness must be qualified by showing members hip in a group that could have been familiar with the personal or family history of the person in question, namely, family, associates or community. . . . The j udge should consider . . . not only the foundation that has been laid for the reception of this reputation evidenc e, but also such factors as the significance and nature of the fact towards which the proof is directed, the ava ilability of other evidence, and the nature of the litiga tion.

Id. S 803.24[3] (footnote omitted). In discussing t he similar hearsay exception in Rule 803(20), for reputation concerning boundaries or general history, Saltzburg explains:

[I]t is considered unlikely that a falsehood could become generally accepted as truth in the co mmunity, where the matter is of importance to the com munity.

. . . [T]he testimony must report a general consensus in the community, an assertion of the group as opposed to one or a few of its constituents. The fact that the information has been considered by and was subject to the general scrutiny of the commu nity is an essential guarantee of reliability for the e xception.

29Saltzburg et al., supra, at 1699. As these comments

indicate, when a matter has been sufficiently discu ssed within a well-defined community so that its truth h as obtained "circumstantial guarantees of trustworthin ess," Fed. R. Evid. 807, it is properly the subject of re putation testimony.

We find further support for our interpretation of t he requirements of Rule 803(19) in the more extensive discussion of the required foundation for testimony regarding character reputation. See Fed. R. Evid. 4 04(a), 405(a), 803(21). We acknowledge that reputation abo ut someone's character and reputation of family relati onships are, in many ways, very different concepts. The fir st might be thought of as a collective community opinion, wh ile the second involves a factual issue. Both, however, req uire a foundation that is trustworthy and a well-defined "community" that is capable of, in a figurative sen se, forming an opinion or discerning a fact. Cf. Webste r's Third New International Dictionary 1929 (1966) (defining reputation as "a particular character in popular es timation or ascription"). We therefore find persuasive those

authorities that have discussed the foundation that must be laid before a witness may testify about the comm unity's opinion of someone.

The leading case in this area predates the Federal Rules of Evidence, but is helpful nonetheless. In Michels on v. United States, 335 U.S. 469 (1948), the Supreme Cou rt

discussed character evidence in the context of a cr iminal

trial. It noted that a witness who testifies about a defendant's character is "allowed to summarize what he has heard in the community, although much of it may hav e been said by persons less qualified to judge than h imself." Id. at 477. The Court limited this rule, however: " [T]he witness must qualify to give an opinion by showing such acquaintance with the defendant, the community in w hich he has lived and the circles in which he has moved, as to speak with authority of the terms in which generall y he is regarded." Id. at 478.

In a pre-Federal Rules case applying the hearsay exception we are considering here (for reputation o f family

30matters), the Ninth Circuit reiterated the Supreme Court's

point in Michelson:

It is not every statement or tradition in t he family

that can be admitted in evidence. The tradit ion must be from persons having such a connection wit h the party to whom it relates, that it is natural and likely, from their domestic habits and connections, that they are speaking the truth, and that they could not be

mistaken.

Young Ah Chor v. Dulles, 270 F.2d 338, 344 (9th Cir . 1959) (internal quotations omitted). In Whiting v. United States, 296 F.2d 512 (1st Cir. 1961), government witnesses had testified at a criminal trial regarding the defenda nt's reputation on the basis of hearsay of unknown origi n. The court of appeals vacated the conviction, finding th e testimony to be inadmissible, as "there must be som e demonstrable basis evincing the competence of the w itness to give his opinion" about the defendant's characte r. Id. at

517. While we have held that a witness need not kno w the defendant personally in order to testify about his character,

we have found it sufficient if the witness "knew of [him] and his reputation among the community and the persons making up at least one of the circles which [he] fr equented." United States v. Neff, 475 F.2d 861, 863 (3d Cir. 1 973).

From these cases, we discern a clear principle: A w itness who wishes to testify about someone's reputation wi thin a community must demonstrate that he or she knows of the person and is truly familiar with the "community" i n which the reputation has been formed, and that the basis of the reputation is one that is likely to be reliable. Wh ere the alleged reputation is based on nothing more than ru mors of unknown origins, or a single instance of "someone t old me so," a proper foundation has not been laid for admi tting such evidence under Rule 803(19).14

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14. Of course, if each hearsay link in the communic ation chain falls under some exception, the evidence may be admissibl e. See Fed. R. Evid. 805. For example, if witness A knows nothing of an individual's reputation, but declarant B, who is qualified under Rule 803(19) to testify thereto, informs A of the individual's rela tionship, and the statement from B to A falls under some hearsay exce ption, A's testimony about the individual's relationship would be admiss ible.

31d. Applying Rule 803(19) to Blackburn's Evidence

We must now determine whether any of Blackburn's evidence involving allegedly related persons workin g at UPS is likely to be admissible under the exception in R ule 803(19). We note preliminarily that our determinati on that a workplace may constitute a "community" under Rule 803(19) is limited by the requirement that a propon ent of

such evidence establish a reliable foundation for a dmitting this hearsay testimony. In other words, allegations regarding relationships at far-flung facilities of a large employer such as UPS almost certainly cannot be admissible as reputation evidence within a communit y or among one's associates.15 Blackburn has not, in man y cases, identified the UPS facility at which alleged ly related persons were working. In order to meet his burden o f establishing a reliable basis for the alleged reput ations he invokes, he would need to identify the "community" in which those reputations exist.16 Because we find th at, even without this identification of the appropriate comm unity,

most of Blackburn's evidence would be inadmissible- -and because, at all events, we conclude that his releva nt, possibly admissible evidence is insufficient for hi m to survive summary judgment--we do not dwell on the shortcomings in his evidence regarding the work loc ation of most of the allegedly related persons he offers.

Blackburn testified that "[i]t was known by myself, certainly, and numerous other people, I presume, th at Bill and Art [Weyrauch] were brothers. I believe that it was a regular topic of discussion." App. at 97. Although the requirements we have set forth above regarding admi ssion of such reputation evidence may not be met by Black burn's testimony, we will assume that upon further develop ment of the background to his allegations, this testimon y might

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15. UPS currently has 326,800 employees worldwide, and 291,500 in the United States alone, at more than 1700 facilities. See UPS at a Glance (visited June 3, 1999) http://www.ups.com/about/gla nce.html>.

16. We do note that most of Blackburn's examples ap pear to concern UPS employees at facilities in Northern New Jersey, which might constitute an adequate community for Rule 803(19) p urposes, assuming that they are somehow linked to each other.

32be admissible at trial, see Petruzzi's, 998 F.2d at 1234 n.9,

and we therefore consider it below in our analysis of whether summary judgment for UPS was properly grant ed.

As for Don McKenny and Vern Cormie, Blackburn could not state how they were related, and admitted that the basis of his information that they were related was "something that I was told by someone I worked with at UPS sometime before I left the company." App. at 97 . This clearly fails to meet the standards we have outline d for reputation evidence under Rule 803(19). Not only do es it appear that Blackburn does not know McKenny and Cormie (i.e., he could not identify their alleged r elationship), but the source of his information--"something that I was told by someone"--cannot even be identified, let al one measured for its trustworthiness.

The same is true of the alleged relationships betwe en Joe Rossano, Jack Davies, and Joe Reynolds (relationshi p unknown, and information based on "something that someone told [Blackburn]"); between Lorrain Curley and Dan Grace (source of information unknown); between Karen Montemarano and an unknown driver; between Kathleen Jewell and an unnamed relative ("I just remember th at she had a relative of some type working there"); and be tween Howard Kaufman and "Mindy" ("it was my understandin g" that they were related). Each of these cases fails to meet the standard we have established for admitting hear say evidence under the exception for reputation concern ing family matters. In each case, Blackburn does not ap pear to be familiar with the persons named, fails to identi fy the community involved, and does not establish any basi s, let alone a reliable one, for the information that he i s offering. In other words, he has failed demonstrably to ident ify a reputation concerning family relationships that wou ld bring this testimony within the exception in Rule 803(19)

.

Finally, while we have held that Blackburn may not testify about what Zileski told him, as this is hea rsay not within any exception, see supra note 11, Zileski hi mself could almost certainly testify at trial that Manzi is his

brother-in-law. We will assume that Blackburn's tes timony regarding what Zileski told him was effectively a p roffer of the testimony that Zileski himself would give at tr ial, and

33we therefore treat this as evidence capable of bein g

admitted at trial. However, Blackburn has presented no evidence that UPS knew of Zileski and Manzi's relat ionship, or that the company knew and did nothing about it. Therefore, this evidence, while potentially admissi ble under a hearsay exception, is not probative of pretext.

5. Summary Judgment

We conclude that Blackburn's evidence that UPS decisionmakers were aware of his relationship to Sh epard, and later fired him for his whistleblowing activity under the pretext of its anti-nepotism policy, is, without mo re, insufficient to overcome summary judgment. As we ha ve detailed supra Part III.C.2-.4, we find that virtua lly none of his evidence regarding other UPS employees who were allegedly related would likely be admissible at tri al as relevant evidence that falls within a hearsay excep tion. We

must therefore determine whether Blackburn has offe red sufficient evidence to create a genuine issue of ma terial fact regarding UPS's stated reason for firing him.

Blackburn concedes that there were numerous instanc es in which UPS terminated employees who violated its antinepotism policy. We have held that only the followi ng pretext evidence might be admissible at trial: Blac kburn's testimony that Bill and Art Weyrauch were generally known as brothers among UPS employees, and Shepard's testimony that she informed UPS's interviewer about her relationship to Blackburn. This scintilla of eviden ce is clearly inadequate to create a genuine issue of mat erial fact on UPS's proffered reason for firing Blackburn. In sum, on this record, we are satisfied that, even assuming t hat Blackburn has met his prima facie burden under CEPA , he has failed to adequately rebut UPS's proffered reas on for his discharge by pointing to sufficient "inconsiste ncies or anomalies that could support an inference that the employer did not act for its stated reasons." Sempi er v. Johnson & Higgins, 45 F.3d 724, 731 (3d Cir. 1995). The judgment of the District Court will therefore be af firmed.

34A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

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